Pankaj Kumar Chakrabarty & Ors Vs.
State of West Bengal [1969] INSC 137 (1 May 1969)
01/05/1969 SHELAT, J.M.
SHELAT, J.M.
BHARGAVA, VISHISHTHA VAIDYIALINGAM, C.A.
HEGDE, K.S.
GROVER, A.N.
CITATION: 1970 AIR 97 1970 SCR (1) 543 1969
SCC (3) 400
CITATOR INFO:
R 1970 SC 675 (11,12) F 1973 SC 824 (4) R
1979 SC 420 (12) F 1980 SC 798 (1) R 1981 SC2069 (4) RF 1987 SC1977 (7) D 1988
SC2090 (25) R 1989 SC1861 (16) RF 1991 SC 574 (11) RF 1991 SC1090 (5)
ACT:
Constitution of India, Art. 22(5)-Preventive
Detention Representation if to be considered by Government-Preventive Detention
Act (4 of 1950), ss. 7 and 13.
HEADNOTE:
The petitioners who were detained under ss.
3(1)(a) (ii) (iii) and 3(2) of the Preventive Detention Act, 1950, made
representations to the State Government against their detentions. The
representations were made after their cases were placed before the Advisory
Board. The State Government without considering the representations, passed
them on to the Advisory Board. The Board considered the case of the petitioners
as well as their representations to the Government and confirmed the order of
detention. The petitioners filed a writ of habeas, corpus, challenging their detentions
on the ground that the State Government had failed to carry out its obligation.
under Art. 22(5) of the Constitution to consider the representation. On the
questions (i) whether there is on the appropriate Government the obligation to
consider the representation made by detenue, and (ii) if there is, whether it
makes any difference where such a representation is made after the detenue's
case is referred to the Advisory Board.
HELD : Setting aside the detenfion, (i)
Clause (5) of the Art. 22 not only contains the obligation of the appropriate
government to furnish the grounds and to give the earliest opportunity to make
a representation but also by necessary implication. the obligation to consider
that representation. The expressions "as soon may be" and "the
earliest opportunity" in that clause clearly indicate that the grounds are
to be served and that the opportunity to make a representation is provided for
to enable the detenue to show that hit detention is unwarranted and since no
other authority who should consider such representation is mentioned it can
only be the detaining authority to whom it is. to be made which has to
consider. [548 B, F] Sk. Abdul Karim v. State of West Bengal, [1969] 3 S.C.R.
479, approved.
(ii) The Constitution could not have intended
that a representation under cl. (5) need not be considered by the appropriate
Government where an Advisory Board is constituted. If that was the intention
cl. (5) would not have directed the detaining authority to afford the earliest
opportunity to the detenue. In imposing the obligation to afford the
opportunity to make a representation cl. (5) does not make any distinction
between orders of detention for only three months or less, where there is no
necessity of having the opinion of an Advisory Board, and those for a longer
duration. The clause does not say that the representation is to be considered
by the appropriate Government in the former class of cases and by the Board in
the latter class of cases. The obligation of the Government to consider the
representation is distinct from the obligation to, constitute an Advisory
Board. Whereas the Government considers the representation to ascertain whether
the order is in conformity with its 544 power under the relevant law, the Board
considers such representation from the point of view of also arriving at its
opinion whether there is sufficient case for detention.
[549 B-C, E-H].
The provisions of the Act also strengthen the
conclusion that the Government has to consider the representation. If the
representation was for consideration not by the Government but by the Board
there was no necessity to provide in s. 7 that it should be addressed to the
Government. Further, it could not have been the intention of Parliament that
the Government could pass an order under s. 13 revoking or modifying an order
of detention without considering the representation which has under s. 7 been
addressed to it. [550 C-F] Sk. Abdul Karim v. State of West Bengal, [1969] 3
S.C.R.
479, -approved.
ORIGINAL JURISDICTION : Writ Petition No. 377
of 1968Petition under Art. 32 of the Constitution of India for the enforcement
of fundamental rights.
S. N. Prasad, for the petitioners Nos. 15 and
36.
Sukumar Basu, for the respondent.
R. S. Garg and A. K. Gupta, for interveners
Nos. 1 to 5.
Niren De, Attorney-General, R. H. Dhebar and
S. P. Nayar, for intervener No. 6.
The Judgment of the Court was delivered by
Shelat, J. 37 persons detained under S. 3(1)(a)(ii) and (iii) read with s. 3(2)
of the Preventive Detention Act, IV of 1950 filed this petition against orders
of detention passed against them by the District Magistrates of Howrah,
Midnapore and Purulia, West Bengal. We are, however, concerned only with Subodh
Chandra Barik and Guhiram Gope, petitioners 15 and 36, as the rest of them have
since then been released. The petition came up for hearing on April 11, 1969
before Sikri and Bachawat, JJ. who referred it to a larger Bench as the
question involved in this petition was of substantial importance. That is how
this petition has come up before us for disposal.
Petitioners in W. P. 448 of 1969, pending in
this Court and who are detained under the Jammu & Kashmir Preventive Detention
Act, applied for intervention as the point involved in this petition also
arises in their petition and that having been allowed, Mr. Garg representing
them appeared before us supporting the contentions raised on behalf of
petitioners 15 and 36.
The order of detention against petitioner
Barik was passed on March 23, 1968 by the District Magistrate, Midnapore, as he
was satisfied that with a view to preventing the petitioner from acting in a
manner prejudicial to the maintenance of supplies and services essential to the
community it was necessary to detain him.
545 The District Magistrate reported to the
State Government has said order on March 27, and the Governor approved the same
on April 1, 1968. As required by s. 3(4) of the Act, the Governor reported the
case to the Central Government. The petitioner was taken into custody on
September 16, 1968 when he was served with the said order and the grounds therefore.
His case was placed before the Advisory Board
on September 21, 1968 under S. 9 of the Act. On October 21, 1968 the petitioner
made his representation against the said order to the State Government. On
November 6, 1968 the Advisory Board, after considering his case as also his
said representation, gave its opinion that there was sufficient cause for his
detention and thereupon the Governor, by his order dated November 11, 1968,
confirmed the said order.
The petitioner filed a petition in the High
Court at Calcutta against the said order but that was dismissed.
As regards petitioner Guhiram Gope, the order
of detention was passed against him by the District Magistrate of Purulia on
August 29, 1968 on the ground that he was satisfied that he was acting in a
manner prejudicial to the maintenance of supplies and services essential to the
community and also to the maintenance of public order, i.e., under cls. (ii)
and (iii) of s. 3 (1) (a). The order was reported to the State Government on
the same day. The Governor approved the order on September 6, 1968and made his
report to the Central Government on the someday. The petitioner was taken into
detention on August 29, 1968after he was served with the order and the grounds
there for. His case was placed before the Advisory Board on September 29, 1968.
The petitioner made his representation to the State Government on October 5,
1968. On November 6, 1968 the Board considered his case as also his said
representation and on its finding that there was sufficient cause for his
detention the Governor confirmed the said order on November 12, 1968.
It is not necessary to go into the various
grounds furnished to the petitioners. It, is sufficient to notice that in the
affidavit in reply filed on behalf of the State Government the detention of the
two petitioners was sought to be defended on the ground that the petitioners,
taking advantage of the scarcity conditions prevailing in the State, were
indulging in illegitimate procuring, holding and disposing of food grains
thereby defeating the policy of and the various control orders passed in that
behalf by the State Government. We may also notice that the grounds supplied to
the petitioners also stated that the petitioners may make a representation to
the State Government as early as possible and that such representation should
be addressed to the officer specified therein.
It is an admitted fact that though the
grounds furnished to the. detenues stated that they might, if they so desired,
make a representation to the State Government, the State Government 546 did not
consider the representations and merely passed them on to, the Advisory Board
for its consideration. Presumably that was done as the representations were
made after the cases of the two Petitioners were referred to the board and the
Government felt that it should not interfere with the decision of the Board by
expressing its own views one way or the other on those representations. The
Stand taken before us by counsel for the State was that neither Art. 22, cls. 4
and 5, nor 'any of the provisions of the Act made it mandatory either expressly
or by necessary implication for the State Government to consider the
representations and that it was sufficient for the Government to pass them on
to the Board for its consideration while viewing the case of the two detenues.
Counsel argued that the decision in Sk.
Abdul Karim & Ors. v. State of West
Bengal(1) which has held that there was a legal obligation on the appropriate
Government to consider the representation of a detenue besides constituting an
advisory board and referring to such board the case of such a detenue for its
opinion was not warranted by the provisions of Art. 22 or the provisions of the
Act and that in any event according to that decision consideration of such a
representation by the appropriate Government was obligatory only where it was
made before and not after the detenue's case was referred to the Board.
That decision, therefore, said counsel,
cannot help these petitioners as they had made their representations after
their cases were referred to the Advisory Board. Besides, there was no
practical utility, said counsel, in the Government considering their
representations when their cases including the representations were being
considered by the Board.
On these contentions two questions arise :
(1) whether there is on the appropriate Government the obligation to consider
the representation made by a detenue, and (2) if there is, whether it makes any
difference where such a representation is made after the detenue's case is
referred to the Advisory Board.
In Sk. Abdul Karim's case(1), this Court,
examining Art.. 22 and the several provisions of the Act, held that (i) a
person detained under the Act has a right to be furnished with the grounds for
his detention, (ii) that he has a right to make a representation against the
order for his detention, (iii) that though cl. 5 of Art. 22 does not in express
language provide as to whom such a representation is to be made and how the
detaining authority is to deal with it, there is by necessary implication an
obligation on the part of the appropriate Government to consider it, and (iv)
the setting up of an advisory board under s. 8 of the Act does not relieve the
appropriate Government from its obligation to consider the representation as
soon as it is received (1) [1969] 3 S.C.R. 4 9. 547 by it. The Court held that
the constitutional right to make a representation guaranteed by Art. 22(5)
includes by necessary implication the constitutional right to a consideration
of the representation by the detaining authority to whom it is made and
repelled the contention that once an advisory board was constituted for the
consideration of the detenue's case it was enough if the State Government were
to send the representation -to the board for consideration without itself
considering it. 'Me learned Judges there gave several illustrations to show
that such a contention was not only incorrect but would defeat the provisions
of Art. 22(4) and (5) and those of the Act.
Article 21 guarantees protection against
deprivation of personal liberty save that in accordance with the procedure
established by law. At first sight it would appear somewhat strange that the
Constitution should make provisions relating to preventive detention
immediately next after Art.
21. That appears to have been done because
the Constitution recognizes the necessity of preventive detention on
extraordinary occasions when control over public order, security of the country
etc. are in danger of a breakdown.
But while recognizing the need of preventive,
detention without recourse to the normal procedure according to. law, it
provides at the same time certain restrictions on the, power of detention both
legislative and executive which it considers as minimum safeguards to ensure
that the power of such detention is not illegitimately or arbitrarily used.
The power of preventive detention is thus
acquiesced in by the Constitution as a necessary evil and is, therefore, hedged
in by diverse procedural safeguards to minimise as much as possible the danger
of its misuse. It is for this reason that Art. 22 has been given a place in the
Chapter on guaranteed rights.
Clause 1 of Art. 22 guarantees to a detenue
the right to be informed as soon as possible of the grounds for his detention
and the right to consult and of being defended by a legal practitioner of his
choice. Clause 2 imposes the obligation of his having to be produced before a
magistrate within 24 hours of his detention and of not being detained beyond
that period without the authority of such magistrate.
Clause 3, however, withdraws these safeguards
in the case of two categories of persons, namely, an enemy alien and persons
detained under a law providing for preventive detention. But the next two
clauses impose certain restrictions on and safeguards against the power of
detention. Clause 4 thus lays down that no law providing for such detention can
authorise the detention for more than 3 months unless an advisory board
composed as therein stated certifies that there is sufficient cause for such
detention and such detention is in consonance with and is not for a period
longer than the one provided by a Parliament Act made under cl. 7. Clause 7
authorises Parliament to make a law prescribing the circumstances under which
and the class or classes of cases in which a person can be detained for more
than 3 months without obtaining the opinion of the advisory board and the
maximum period for which a person may in any such class or classes of cases be
detained and the procedure to be followed by the advisory board in the enquiry
under cl. 4(a). Clause 5 imposes on obligation on the detaining authority to
furnish to the person detained by it grounds for his detention "as soon as
may be" and give him "the earliest opportunity" of making a
representation against the order of detention passed against him. These clauses
thus clearly impose on the detaining authority the obligation to furnish to the
detenue as soon as may be the grounds for his detention, the, obligation to
afford him the earliest opportunity of making a representation against the
order and the obligation to constitute an advisory board and not to keep the
detenue in detention for a period longer than 3 months unless before the expiry
of that period it has obtained the opinion of the board that there is
sufficient cause for such detention except in cases prescribed in a Parliament
Act passed under and by virtue of cl. 7. The reason for the expressions
"as soon as may be" for furnishing the grounds and "the earliest
opportunity" for making a representation in these clauses is the extreme
anxiety of the Constitution to see that no person is detained contrary to the
law enabling preventive detention or in breach of or contrary, to the
safeguards and restrictions provided in these clauses. The grounds for
detention are to be served on the detenue as soon as may be and the earliest
opportunity to make a representation against the order is to be given to him to
enable him to protest against the order that he is either wrongly or illegally
detained.
It is true that cl. 5 does not in positive
language provide as to whom the representation is to be made and by whom,, when
made, it is to be considered. But the expressions "as soon as may be"
and "the earliest opportunity" in that clause clearly indicate that
the grounds are to be served and the opportunity to make a representation are
provided for to enable the detenue to show that his detention is unwarranted
and since no other authority who should consider such representation is
mentioned it can ,only be the detaining authority to whom it is to be made
which has to consider it. Though cl. 5 does not in express terms say so it
follows from its provisions that it is the detaining authority which has to
give to the detenue the earliest opportunity to make a representation and to
consider it when so made whether its order is wrongful or contrary to the law
enabling it to detain him. The illustrations given in Sk. Abdul Karim's case(1)
show that cl. 5 of Art. 22 not only contains the obligation of the appropriate
Government to furnish the grounds and to give the (1) [1969] 3 S.C.R. 479.
549 earliest opportunity to make a
representation but also by necessary implication the obligation to consider
that representation. Such an obligation is evidently provided for to given an
opportunity to the detenue to show and a corresponding opportunity to the
appropriate Government to consider any objections against the order which the
detenue may raise so that no person is, through error or otherwise, wrongly
arrested and detained. If it was intended that such a representation need not
be considered by the Government where an advisory board is constituted and that
representation in such cases is to be considered by the board and not by the
appropriate Government, cl. 5 would not have directed the detaining authority
to afford the earliest opportunity to the detenue. In that case the words would
more appropriately have been that the authority should obtain the opinion of
the board after giving an opportunity to the detenue to make a representation
and communicate the same to the board. But what would happen in cases where the
detention is for less than 3 months and there is no necessity of having the
opinion of the board ? If counsel's contention were to be right the
representation in such cases would not have to be considered either by the appropriate
Government or by the board and the right of representation and the
corresponding obligation of the appropriate Government to give the earliest
opportunity to make such representation would be rendered nugatory. In imposing
the obligation to afford the opportunity to make a representation cl. 5 does
not make any distinction between orders of detention for only 3 months or less
and those for a longer duration. The obligation applies to both kinds of
orders. The clause does not say that the representation is to be considered by
the appropriate Government in the former class of cases and by the board in the
later class of cases.
In our view it is clear from cls. 4 and 5 of
Art. 22 that there is a dual obligation on the appropriate Government and a
,dual right in favour of the detenue, namely, (1) to have his representation
irrespective of the length of detention considered by the appropriate
Government and (2) to have once again that representation in the light of the
circumstances of the case considered by the board before it gives its opinion.
If in the light of that representation the board finds that there is no
sufficient cause for detention the Government has to revoke the order of
detention and set at liberty the detenue. Thus, whereas the Government
considers the representation to ascertain whether the order is in conformity
with its power under the relevant law, the board considers such representation
from the point of view of arriving at its opinion whether there is sufficient
cause for detention. The obligation of the appropriate Government to afford to
the detenue the opportunity to make a representation and to consider that
representation is distinct from the Government's obligation to constitute a
board and to communicate the representation amongst other 550 materials to the
board to enable it to form its opinion and to ,obtain such opinion.
This conclusion is strengthened by the other
provisions of the Act. In conformity with cls. 4 and 5 of Art. 22, S. 7 of the
Act enjoins upon the detaining authority to furnish to the detenue .grounds of
detention within five days from the date of his detention and to afford to the
detenue the earliest opportunity to make his representation to the -appropriate
Government. Sections 8 and 9 enjoin upon the appropriate Government to
constitute an advisory board and to place within .30 days from the date of the
.detention the grounds for detention, the detenue's representation -and also
the report of the officer where the order of detention is -made by an officer
and not by the Government. The obligation under S. 7 is quite distinct from
that under as.
8 and 9. If the -representation was for the
consideration not by the Government but by the board only as contended, there
was no necessity to provide that it should be addressed to the Government and
not directly to the board.
The Government could not have been intended
to be only a transmitting authority nor could it have been -contemplated that
it should sit tight on that representation remit it to the board after it is
constituted. The peremptory language in cl. 5 of Art. 22 and S. 7 of the Act
would not have been necessary if the board and not the Government had to
,consider the representation. Section 13 also furnishes an answer to the
argument of counsel for the State. Under that section the 'State Government and
the Central Government are empowered to -revoke or modify an order of
detention. That power is evidently provided for to enable the Government to
take appropriate action -where on a representation made to it finds that the
order in question should be modified or even revoked. Obviously, the intention
of Parliament could not have been that the appropriate Government should pass
an order under S. 13 without considering the ,representation which has under S.
7 been addressed to it.
For the reasons aforesaid we are in agreement
with the decision in Sk. Abdul Karim's case(1). Consequently, the petitioners
had a constitutional right and there was on the State Government a
corresponding constitutional obligation to consider their representations
irrespective of whether they were made before or after their cases were
referred to the Advisory Board and that not having been done the order of
detention against them cannot be sustained. In this view it is not necessary
for us to examine the other objections raised against these orders. The
petition is therefore allowed, the orders of detention against petitioners 15
and 36 are set aside and we direct that they should be set at liberty
forthwith.
Petition allowed.
Y.P.
(1)[1969] 3 S.C. R.479.
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